Never completely out of the public eye, the tuna-dolphin conflict has again emerged as a congressional and public debate, though in a different context than in the 1980s. Then, U.S. tuna fleets alone killed tens of thousands of dolphins annually in the Eastern Tropical Pacific Tuna Fishery (ETP). By 1994, the estimated incidental dolphin kill for U.S. vessels was 106, while foreign vessels killed just under 4,000 dolphins. This reduction in dolphin mortality rates has been attributed to several programs, including the Marine Mammal Protection Act (MMPA), the International Dolphin Conservation Act of 1992 (IDCA), and international programs overseen by the Inter-American Tropical Tuna Commission (IATTC). The dramatic drop in dolphin mortality raises the question of whether the United States should maintain embargoes on imported tuna. Increased international pressure to amend U.S. legislation to reflect the standards of the Panama Declaration has intensified the recent debate over proposed amendments to the MMPA, which would change the statutory restrictions on importing tuna caught in the ETP into the United States.

To avoid commercial losses and potential increases in international dolphin mortality, Congress must change the definition of “dolphin-safe” to reflect actual observed dolphin mortality rates. The MMPA imposes “dolphin-safe” labeling on tuna fishermen in two ways. First, the IDCA, which is codified at Title III of the MMPA, requires that all canned tuna imported into the United States, including tuna harvested by U.S. fishermen, be “dolphin-safe.” Second, the Dolphin Protection Consumer Information Act (DPCIA) contains voluntary labeling requirements for canned tuna sold in the United States and defines “dolphin-safe” for purse seine fishing in the ETP. Together, the IDCA and DPCIA act as embargoes by keeping tuna caught by methods that endanger dolphins out of the U.S. canned tuna market.

Passing legislation is difficult because of the diverse group of participants potentially affected by the proposed amendments to the MMPA. Animal rights groups, consumers, members of the U.S. tuna industry, and those involved in international trade are just a few of the groups involved in the debate. These groups primarily disagree on whether the ultimate goals of the statutes have been met. Several groups with direct economic ties to the tuna industry, such as the American Tunaboat Owners Coalition, claim that the dolphins are now safe and so the bans should be dropped. Other groups, such as the Earth Island Institute (EII), insist that U.S. embargoes should remain because the goal of “zero mortality” for dolphins under the IDCA has not been met. These interest groups also take opposing positions on the DPCIA's definition of “dolphin-safe.” Because dolphin mortality has declined substantially in the ETP, some groups advocate abandoning the current “dolphin-safe” labeling regime altogether, while others argue that the definition of “dolphin-safe” should remain the same or be amended.

This Note argues that Congress should enact House Bill 2823 and Senate Bill 1420, both of which would redefine “dolphin-safe” to reflect an observed mortality standard, thereby implementing the Panama Declaration in the United States. Congress should supplement these bills with a public feedback system to provide public access to dolphin mortality rates for all tuna harvesting vessels.

Part II provides the background on the tuna-dolphin controversy and explains the domestic and international laws governing dolphin mortality. In Part III, the four policy options for reforming “dolphin-safe” labeling and the IDCA are explored. First, Congress could repeal existing restrictions on dolphin mortality rates in favor of the open market. Second, Congress could keep the current statutory definition of “dolphin-safe,” but remove the IDCA embargo. Third, Congress could redefine “dolphin-safe,” but maintain the IDCA embargo. Fourth, Congress could retain the current statutory definition of ‘dolphin-safe‘ and the IDCA embargo. For each of these options, the impact of mandatory disclosure to consumers about dolphin mortality rates as well as probable reaction to the policies by involved groups, such as foreign nations, canneries, and consumers are discussed. This Note argues that Congress should adopt the third option by enacting an observed mortality standard, along with the IDCA embargo as modified in House Bill 2823 and Senate Bill 1420. Part IV discusses an alternative regulatory model, the “public feedback” model, and its application to the policy alternatives discussed in Part III. The public feedback model would reflect IATTC standards so that mortality rates on voyages outside the ETP and for voyages which do not result in tuna that meets U.S. importation requirements would be available to the public. Finally, Part V concludes that Congress must act now to implement the Panama Declaration by changing the definition of “dolphin-safe” under the DPCIA to the observed dolphin mortality standard as outlined by House Bill 2823 and Senate Bill 1420. Enacting these bills would preserve the significant decreases in international dolphin mortality rates, while still assuring consumers that the canned tuna they buy is “dolphin-safe,” since there would be no observed dolphin mortalities associated with the tuna.